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Decision No. 13,720

Appeal of NEWBURGH TEACHERS ASSOCIATION, and FRANK COLONE, from action of the Board of Education of the Enlarged City School District of the City of Newburgh and Superintendent Phillip E. Leahy regarding shared decisionmaking.

Decision No. 13,720

(December 30, 1996)

James R. Sandner, Esq., attorney for petitioners, John J. Naun, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw and Lisa A. Schreiner, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the process for biennial review of the shared decisionmaking plan of the Board of Education of the Enlarged City School District of the City of Newburgh ("respondent"). The appeal must sustained in part.

Petitioners are the collective bargaining organization representing teachers in respondent's district and the collective bargaining organization's president. They challenge the process by which respondent conducted its biennial review. Under 8 NYCRR 100.11, respondent is required to conduct a biennial review of the district's shared decisionmaking plan and submit that plan to the State Education Department (SED) by February 1, 1996. In November 1995, respondent received written guidelines from SED concerning the biennial review process.

On October 23, 1995, petitioner Colone received a letter from a parent representative, indicating that he was a member of a subcommittee involved in making revisions to the district's shared decisionmaking plan and requesting the petitioners' involvement in the work of the subcommittee. By letter dated November 1, 1995, petitioner Colone replied to the parent representative's letter that any amendment to the plan had to be made through the district's central compact steering committee which was formed for that purpose in accordance with '100.11(b) of the Commissioner's regulations. By memo dated November 17, 1995, respondent's assistant superintendent for pupil personnel and secondary instruction forwarded the SED biennial review guidelines to respondent board members, indicating that the memo would also be sent to the central committee before the next meeting. The central committee presented its recommendations for the proposed amendments to the district plan to respondent board on December 20, 1995. Those amendments were discussed at a board meeting held on January 4, 1996. On January 24, 1996, a compact re-write committee meeting was held and all constituent groups were invited to participate. A board meeting was held on January 31, 1996 to discuss the recommended changes.

On February 1, 1996, the supervisors and administrators group submitted a written response to respondent concerning the plan, indicating agreement with some of the proposed changes but not with others. By memo dated February 2, 1996, respondent's assistant superintendent informed the board of the parent representative's response to the recommended revisions to the plan. On February 2, 1996, respondent's assistant superintendent invited all representatives to a February 8, 1996 board meeting to discuss the plan revisions. Petitioner Colone offered proposed changes to the plan regarding teacher selection. Respondent board met on February 29, 1996 to seek the endorsement of all constituent groups. Petitioner union and petitioner Colone did not attend the meeting. Respondent adopted the revised plan with the endorsement of all constituent groups except the teachers. This appeal ensued.

Petitioners allege that respondent has failed to conduct its biennial review in accordance with the Commissioner's regulations because it did not include teacher representatives on the district's central committee. Petitioners seek an order annulling the amendments to the original plan. Petitioners also seek an order requiring respondent to submit revisions to a properly comprised committee pursuant to the regulations. Respondent contends that its revised plan was adopted in accordance with the regulations and the provisions of the original plan. Respondent also contends that petitioners were invited to participate and collaborate in the development of the revised district plan.

Section 100.11(f) of the Commissioner's regulations requires that:

the district's `Plan for the Participation by Teachers and Parents in School-based Planning and Shared Decisionmaking' shall be reviewed biennially by the board of education or BOCES in accordance with subdivision (b) of this section. Any amendment or recertification of a plan shall be developed and adopted in the manner prescribed by subdivision (b) and paragraphs (d)(1) and (2) of this section. The amended plan or a recertification of the previous plan, together with a statement of the plan's success in achieving its objectives, shall be filed with the district superintendent where applicable, and submitted to the commissioner for approval no later than February 1st of each year in which such biennial review takes place, commencing with February 1, 1996.

Section 100.11(d)(1) of the Commissioner's regulations provides, in pertinent part:

The district's plan shall be adopted by the board of education or BOCES at a public meeting after consultation with and full participation by the designated representatives of the administrators, teachers, and parents, and after seeking endorsement of the plan by such designated representatives.

The record indicates that respondent originally adopted a plan with a properly composed district planning committee. However, the district's plan provided that the steering committee would dissolve upon approval of the plan by respondent board and the Commissioner of Education.

Subsequently, respondent created a central committee which was composed of building representatives selected to serve on it. Apparently, no teacher representatives were selected to serve on the central committee. In this case, a subcommittee of the central committee addressed the revisions to the shared decisionmaking plan, and petitioners refused to participate in the ongoing discussions since it believed that the committee was not properly constituted. My review of the record indicates that petitioners are correct in their assertion that the regulation mandates the participation of designated representatives in the biennial review process to the same extent those designated representatives participated in the creation of the original district plan. Although the record indicates that respondent's initial steering committee was properly constituted, the central committee was not properly constituted for the purposes of the biennial review of the district plan. Therefore, respondent must ensure that all designated representatives are part of its central committee.

However, while petitioners object to the method by which respondent conducted its biennial review, my review of the record indicates that, with the exception of the composition of the central committee as noted above, respondent did not otherwise violate the Commissioner's regulations. A subcommittee of the central committee was apparently formed to discuss the revisions, and invited all designated representatives to participate. Although petitioners object to the formation of the subcommittee to handle revisions to the plan, I do not find that method problematic or in contravention of the regulation, which is silent on that point. The use of the subcommittee would not have been problematic had the central committee and subsequent subcommittee been properly constituted. The record indicates that petitioners were invited to participate in the subcommittee process, but refused. In fact, the record indicates that respondent actively sought petitioners' participation. Therefore, it is disingenuous for petitioners to claim that they were unaware that the biennial review was occurring. Based on the record before me, I am constrained to remand this matter to respondent for appropriate action consistent with the directives provided in this decision.

I have reviewed petitioners' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's shared decisionmaking central committee contain all designated representatives as authorized in the regulations, and

IT IS FURTHER ORDERED that respondent resubmit its biennial review consistent with the regulations and this decision as expeditiously as possible.

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